Robinson v. L-Cart, Inc.

• Decision Date: 21 August 1964
• Docket Number: INC,L-CAR
• Citation: 54 Tenn.App. 298,390 S.W.2d 689
• Parties: Brisco ROBINSON v., a Corporation and Melvin Malone and Butler Malone. Helen ROBINSON v., a Corporation and Melvin Malone and Butler Malone. Karen BOLES b/n/f v., a Corporation and Melvin Malone and Butler Malone.
• Court: Tennessee Court of Appeals

Page 689

390 S.W.2d 689

54 Tenn.App. 298

Brisco ROBINSON v. L-CART, INC., a Corporation and Melvin Malone and Butler Malone.

Helen ROBINSON v. L-CART, INC., a Corporation and Melvin Malone and Butler Malone.

Karen BOLES b/n/f v. L-CART, INC., a Corporation and Melvin Malone and Butler Malone.

Court of Appeals of Tennessee, Middle Section.

Aug. 21, 1964 Certiorari Denied by Supreme Court March 1, 1965.

McAllen Foutch, George LeFevre, Smithville, for plaintiffs-appellant.

Wesley Flatt, Sr., Wesley Flatt, Jr., Cookeville, for L-Cart, Inc.

Jared Maddux, C. A. Cameron, Cookeville, for Malones.

SHRIVER, Judge.

I

--THE CASES--

These three cases were brought in the Circuit Court of Putnam County to recover for personal injuries resulting from a gas explosion in a Belvedere Mobile Home manufactured by L-Cart, Inc. and sold to the plaintiffs, Brisco Robinson and Helen Robinson, by the defendants, Melvin Malone and Butler Malone, doing business as Cookeville Trailer Park and Sales Co. Summons was issued on January 7, 1961 and served on Melvin Malone and Butler Malone individually and as agents for L-Cart, Inc., a foreign corporation with its principal office in Elkhart, Indiana.

L-Cart, Inc., pleaded in abatement to the suits on the grounds that, it was a non-resident of the State of Tennessee, not doing business in the State at the time, and that it had no agent in Tennessee upon whom process could be served.

Plaintiffs joined issue on these pleas and proof was introduced and a hearing had before the Court on April 11, 1961. After hearing proof, the Court overruled the plea in abatement and ordered the parties to make further defense after declarations were filed.

On April 20, 1961, defendant, L-Cart, Inc., filed a motion for a new trial on its plea in abatement and the Court overruled said motion and allowed said defendant to preserve a Wayside Bill of Exceptions which was duly filed on April 29, 1961.

Thereafter, on August 22, 1961, L-Cart, Inc. filed a plea of not guilty and Melvin Malone and Butler Malone, d/b/s, etc. filed a like plea on September 29, 1961.

There was a trial of the cases on their merits before a jury and at the conclusion of plaintiffs proof on March 28, 1963, approximately 23 months after the Court had overruled the motion for a new trial on the plea in abatement, defendant, L-Cart, Inc., moved the Court to reconsider its action on the plea in abatement, whereupon, the Court sustained the plea in abatement and dismissed plaintiffs' suits against L-Cart, Inc.

Also at the conclusion of plaintiffs proof on March 28, 1963 defendants Butler Malone and Melvin Malone, moved the Court for a directed verdict in their favor on all counts of their respective declarations and the Court sustained this motion and dismissed all of the suits.

After motions for a new trial in each of the cases was heard and overruled an appeal was prayed and perfected to this Court and assignments filed.

II

Plaintiffs below assign as error the action of the Court in reconsidering and sustaining the plea in abatement and we will consider same at this point.

The evidence preserved in the Wayside Bill of Exceptions and which was introduced on the hearing of the plea in abatement appears in the transcript at pages 30-41 of volume 1, and an exhibit which is on page 87 of volume 2.

This is the only evidence that can be considered by this Court in determining the correctness or incorrectness of the trial Court's action on the plea in abatement.

Counsel for L-Cart, Inc., have referred to evidence in the record at the trial of the cause on its merits. We find under Code Section 27-108, T.C.A. and the notes thereunder a long line of cases holding that evidence heard on a subsequent trial or hearing of an issue cannot be considered by the Appellate Courts in acting on assignments of error in the first hearing. Howell v. Wallace E. Johnson, Inc., 42 Tenn.App. 15, 298 S.W.2d 753; Meacham v. Woods, 205 Tenn. 18, 325 S.W.2d 281; Thompson v. Jarrett, 44 Tenn.App. 513, 315 S.W.2d 537.

It appears from the record that the Court overruled the plea in abatement of defendant L-Cart, Inc., in April 1961 after hearing proof and considering the matter and, as hereinabove noted, some 23 months thereafter, to-wit, in March 1963, reconsidered its action on the plea in abatement and reversed the former judgment and decree and sustained the plea.

It would appear that the judgment of the Court in April 1961 was allowed to become final and was not subject to reconsideration after the expiration of 30 days and the end of the term of Court at which it was pronounced.

In this case the motion for a new trial suspended the original judgment but when it was finally acted on and the final judgment rendered overruling a motion for a new trial this judgment became final insofar as the plea in abatement is concerned and it was not subject to be reconsidered by the trial judge.

We have a number of reported decisions dealing with this subject wherein the rule is stated as follows:

'While the line between interlocutory decrees, subject to be revised at a subsequent term, and those not subject to such reconsideration, cannot be scientifically defined, yet it may be stated as the general rule that, if such interlocutory decree settles a principle, or adjudges a right, or determines an issue, then, in such case, it is not open for revision at a subsequent term.' Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715; Boyd v. Sims, 87 Tenn. 771, 11 S.W. 948; Johnston v. Hanner, 70 Tenn. 8-10; Meek v. Mathis, 48 Tenn. 534; Vaccaro v. Cicalla, 89 Tenn. 63 14 S.W. 43; Citizens Bank, etc. Co. v. Bayles, 153 Tenn. 40, 281 S.W. 932; Mayor and Aldermen of Morristown v. Love, 160 Tenn. 177, 22 S.W.2d 769.

"In other words, all interlocutory decrees which determine an issue shall be treated as final and not subject to review at a subsequent term.'

'It follows, from the foregoing, that the trial court was without authority to review the judgment entered during the February term at a subsequent term; so that the status of the cases is the same as if no motion for a new trial had ever been made, on account of the action of the trial court in not sustaining the plea in abatement.' Mayor and Aldermen of Morristown v. Love, 160 Tenn. 177-184, 22 S.W.2d 769-771.

'An interlocutory decree, adjudging rights or settling principles, is not subject to revision at subsequent term of court, though it is not final and no appeal lies therefrom.' Maury County Trust Co. et al. v. Consolidated Phosphate Co. et al., 179 Tenn. 8, 162 S.W.2d 397, 169 A.L.R. 116.

'Chancellor may not, at a subsequent term of court, revise a decree by which rights were adjudicated or principles settled.' Watts et ux. v. Roberts et al., 185 Tenn. 313, 206 S.W.2d 307.

Also see Boyd v. Sims, 87 Tenn. 771, 11 S.W. 948, where it was said:

'When parties, after a demurrer is finally overruled, have put their cause at issue, and gone to the trouble and expense of taking the proof necessary to present the merits of the controversy for determination, they are entitled to have it so determined, and such decree submitted to this court for review with all others, on demurrer or otherwise, which are open to revision on appeal.'

In Allen v. Elliott Reynolds Motor Co., 33 Tenn.App. 179, 230 S.W.2d 418, in an opinion by Judge Felts it was said:

'It is true the first decree was an interlocutory one which adjudged the issue of liability and which was not open to revision by the Chancellor at a subsequent term. But this does not mean that it is not open to review on appeal. Since it was an interlocutory and not a final decree, defendants had no right to appeal from it. Nor was it necessary for them to except to it at the time that it was entered. The effect of their broad appeal was to bring up the whole case for trial here de novo upon a re-examination of the whole matter of law and fact appearing in the record.'

It thus appears that assignment of error No. 1, is good. However, under the circumstances shown here, the error will have to be considered as harmless since the question of the sufficiency of the plea in abatement under the proof is before us for determination on the Wayside Bill of Exceptions and we will pass on it regardless of the later action of the trial Judge in sustaining it.

Process was served on the defendants, Melvin Malone and Butler Malone, as agents of L-Cart, Inc., a foreign corporation, pursuant to Sections 20-220 and 20-221, T.C.A.

Section 20-220 provides that any corporation claiming existence under the laws of the United States or any other State or of any country foreign to the United States shall be subject to the same extent that corporations of this State are by the laws thereof so far as relates to any transaction had in whole or in part in this State or any cause of action arising here. It further provides that any such corporation having any transaction with persons or having any transaction concerning any property situated in this State through any agency whatever acting for it within the State, shall be held to be doing business here within the meaning of this section.

Section 20-221 provides that process may be served on any agent of the corporation found within the county where the suit is brought, no matter what character of agent such person may be and that it shall be sufficient to serve process on any person if found within the county where the suit is brought who represented the corporation at the time the transaction out of which the suit arises took place.

In the recent case of Atchison, Topeka and Santa Fe Railway Co. v. Ortiz, 50 Tenn.App. 317, 361 S.W.2d 113, decided by the Western Division of this Court, in an opinion by Judge Avery, numerous cases involving the question at hand were discussed and the holding in Tucker v. International Salt Company, 209 Tenn. 95, 349 S.W.2d 541, cited by defendants herein, which was decided in accord with the 'Old Drummer' cases that...